Case Note & Summary
The appeal arose from a judgment of the Kerala High Court dismissing a civil revision application filed by the appellants, who were judgment-debtors. The property of the appellants was sold in execution of a decree in a public auction, and the respondent was the auction-purchaser. The sale was confirmed by the Executing Court on 16th July 2009 under Order XXI Rule 92(1) CPC. The sale certificate was issued on 5th February 2010 under Rule 94. The respondent filed an application under Order XXI Rule 95 CPC for delivery of possession on 27th July 2010. The Executing Court allowed the application, and the appellants' review was dismissed. The High Court upheld the order, holding that the limitation for the application under Rule 95 started from the date of issuance of the sale certificate. The Supreme Court considered the issue of the starting point of limitation for an application under Order XXI Rule 95 CPC. The appellants argued that under Article 134 of the Limitation Act, 1963, the limitation of one year runs from the date the sale becomes absolute, i.e., the date of confirmation under Rule 92(1). The respondent contended that the limitation runs from the date of issuance of the sale certificate. The Court analyzed the language of Article 134 and Order XXI Rules 92 and 94. It held that the sale becomes absolute on the date of confirmation under Rule 92(1), and the issuance of the sale certificate under Rule 94 is a ministerial act that does not affect the vesting of title. Therefore, the limitation for an application under Rule 95 starts from the date of confirmation of sale, not from the date of the sale certificate. Since the application was filed on 27th July 2010, more than one year after the confirmation on 16th July 2009, it was barred by limitation. The Court allowed the appeal, set aside the orders of the High Court and the Executing Court, and dismissed the respondent's application under Order XXI Rule 95 CPC.
Headnote
A) Civil Procedure - Limitation - Application for Possession under Order XXI Rule 95 CPC - Starting Point of Limitation - Article 134 of Limitation Act, 1963 - The issue was whether limitation for an application under Order XXI Rule 95 CPC runs from the date the sale becomes absolute (confirmation under Rule 92(1)) or from the date of issuance of sale certificate. The Court held that the starting point is the date the sale becomes absolute, i.e., the date of confirmation of sale under Rule 92(1), and not the date of issuance of sale certificate under Rule 94. The application filed beyond one year from confirmation was barred by limitation. (Paras 2-10)
Issue of Consideration
What is the starting point of limitation for filing an application under Rule 95 of Order XXI of the Code of Civil Procedure, 1908?
Final Decision
Appeal allowed. Impugned judgment of High Court dated 11.04.2017 set aside. Orders of Executing Court allowing application under Order XXI Rule 95 CPC and dismissing review also set aside. Respondent's application under Order XXI Rule 95 CPC dismissed as barred by limitation.
Law Points
- Limitation for application under Order XXI Rule 95 CPC starts from date sale becomes absolute
- not from issuance of sale certificate
- Article 134 Limitation Act
- 1963
- Order XXI Rule 92(1) CPC
